State v. Franklin ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 125,324
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JOSEPH M. FRANKLIN,
Appellant.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Submitted without oral
argument. Opinion filed July 5, 2024. Reversed in part, dismissed in part, and remanded with directions.
Grace E. Tran, of Kansas Appellate Defender Office, for appellant.
Andrew R. Davidson, deputy district attorney, Thomas R. Stanton, district attorney, and Kris W.
Kobach, attorney general, for appellee.
Before COBLE, P.J., SCHROEDER and CLINE, JJ.
PER CURIAM: Joseph M. Franklin was convicted at a jury trial of one count of
robbery and one count of possession of marijuana. On appeal, Franklin challenges only
the marijuana conviction, arguing: (1) The district court erred by constructively
amending the charge; (2) the State failed to present sufficient evidence to support his
conviction of possession of marijuana; and (3) the district court violated his rights under
the Equal Protection Clause by erroneously scoring his criminal history. Because the trial
court's jury instruction for possession of tetrahydrocannabinol (THC) coupled with the
State's evidence impermissibly supported a charge different from that contained in the
1
complaint, we find that the possession of marijuana charge was impermissibly
constructively amended. Although the State presented sufficient evidence for his
conviction of marijuana, the jury was nonetheless instructed only on possession of THC.
We reverse Franklin's conviction for possession of marijuana and remand the case for
further proceedings, and dismiss his Equal Protection claim as moot, as we have
previously addressed the same claim in another appeal.
FACTUAL AND PROCEDURAL BACKGROUND
After a break-in which was observed on security video led to a 911 call, Franklin
was charged with one count of burglary of a non-dwelling structure under K.S.A. 2019
Supp. 21-5807(a)(2) (Count 1), and one count of possession of marijuana under K.S.A.
2019 Supp. 21-5706(b)(3) (Count 2).
The incidents leading to Franklin's arrest were outlined through witness testimony
at trial. On the night of February 1, 2020, after being alerted by his video security system,
Tracy L. Metzger saw a man and woman he did not recognize inside his rental shop in
Hutchinson, Kansas, without his permission. After confirming his business partner was
unaware of anyone that should be inside the facility at that time, Metzger called 911 and
headed to the shop. When he arrived, officers from the Hutchinson Police Department
had already detained the two individuals Metzger saw in the security video. At trial,
Metzger identified the man in the security video as Franklin.
Officer Levi Harris was dispatched to the burglary in progress 911 call. Based on
the description of the suspects, a male and female with bicycles, Officer Harris identified
and contacted Franklin and a female, Sandra Thompson, about a block away from
Metzger's rental shop. Franklin agreed to talk after Officer Harris read Franklin his
Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966). Franklin told the officer that he was at the soup kitchen nearby and was going to a
2
friend's house. During the interaction, Metzger arrived and identified Franklin and
Thompson as the individuals he saw on the surveillance camera. Franklin then told
Officer Harris that he saw an open garage door and went inside to secure it and planned
to try finding the owner of the building, though he did not know the owner. Franklin
admitted he was broke and had a hard time coming up with money, so when he noticed
some things inside the building worth money, he thought about stealing them but changed
his mind. Franklin's interaction with Officer Harris was memorialized on the officer's
body camera video, which was presented at trial.
Officer Harris arrested Franklin and searched his belongings for other stolen items.
Officer Harris discovered a "one hitter style pipe," a common type of pipe that people use
to pack small amounts of marijuana in and smoke it, in one of Franklin's backpack
pockets. Officer Harris noticed the pipe smelled like burnt marijuana but was unable to
field test the substance in the pipe because of the insufficient amount left on the tip of the
pipe. The pipe was sent to the Kansas Bureau of Investigation (KBI) lab for further
testing.
Alyssa Weeks, a forensic scientist with the KBI, received the sealed evidence
envelope containing the pipe for testing. Weeks testified she performed both gas
chromatography-mass spectrometry and thin layer chromatography testing on the pipe.
Both tests resulted in a positive finding of tetrahydrocannabinol (THC), the main
psychoactive ingredient found in marijuana. Although THC is present in marijuana,
Weeks testified she could not give a clear answer on whether the presence of marijuana is
required for a finding of THC, and she was not sure whether the THC residue came from
marijuana or something else.
At the conclusion of the State's evidence at trial, Franklin moved the court to
dismiss both counts. As to Count 2, the possession of marijuana charge, he argued it
should be dismissed because the State failed to make its case since only THC and not
3
marijuana was found in the pipe. The district court denied Franklin's motion finding the
State sufficiently established there was marijuana in the pipe found in Franklin's bag.
Without any objection, the district court provided jury instruction No. 9:
"In Count Two, Joseph Franklin is charged with unlawfully possessing
tetrahydrocannabinol. Joseph Franklin pleads not guilty. To establish this charge, each of
the following claims must be proved:
"1. Joseph Franklin possessed tetrahydrocannabinol.
"2. This act occurred on or between the 1st day of February 2020, in
Reno County, Kansas.
"'Possession' means having joint or exclusive control over [an] item with
knowledge of and the intent to have such control or knowingly keeping some item in a
place where the person has some measure of access and right of control.
"The State must prove that Joseph Franklin possessed tetrahydrocannabinol
knowingly. A defendant acts knowingly when the defendant is aware of the nature of his
conduct that the state complains about.
"Proof of possession of any amount of a controlled substance suffices to sustain a
conviction even if the amount is not measurable or useable."
The jury found Franklin guilty of both charges.
Franklin moved the court for a downward durational and/or dispositional departure
sentence. The district court found Franklin had a criminal history score of A, including a
juvenile felony in 1977. The district court denied Franklin's departure motion, finding no
substantial and compelling reasons to depart from the sentencing guidelines and
sentenced him to 32 months in prison for Count 1, with a 1-year prison sentence for
Count 2 to run concurrent to Count 1.
4
Franklin timely appeals.
THE DISTRICT COURT ERRED BY CONSTRUCTIVELY
AMENDING THE DRUG CHARGE
Franklin now argues that the district court constructively amended Count 2
through its jury instruction, resulting in his conviction for a crime broader than what was
charged.
Preservation
Preservation is a threshold concern, and Franklin concedes he did not make this
argument to the district court. Generally, appellate courts will not consider issues raised
for the first time on appeal, even constitutional ones. See State v. Green, 315 Kan. 178,
182, 505 P.3d 377 (2022); State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
But as Franklin points out, and the State concedes, this court has reviewed issues raised
for the first time on appeal under certain exceptions to this general rule. Specifically, we
have reviewed other constructive amendment claims under recognized exceptions, where
the newly asserted theory involves only a question of law arising on proved or admitted
facts and is determinative of the case or when consideration of the theory is necessary to
serve the ends of justice or to prevent the denial of fundamental rights. State v. Allen, 314
Kan. 280, 283, 497 P.3d 566 (2021). Because Franklin's claim involves only a question of
law on proved or admitted facts, we likewise choose to consider the merits of his claim.
Applicable Legal Standards
Kansas courts have addressed constructive amendment claims by following
federal caselaw from the Tenth Circuit Court of Appeals. State v. Dickerson, No.
125,529, 2024 WL 62834, at *2 (Kan. App. 2024) (unpublished opinion); see also State
v. Holmes, No. 116,338, 2017 WL 5617102, at *3 (Kan. App. 2017) (unpublished
5
opinion) (citing United States v. Farr, 536 F.3d 1174, 1179 [10th Cir. 2008]). Whether a
criminal complaint has been impermissibly constructively amended is subject to de novo
review. State v. Hunt, 61 Kan. App. 2d 435, 438-39, 503 P.3d 1067 (2021), rev. denied
315 Kan. 970 (2022); see also State v. Nesbitt, No. 121,647, 2021 WL 3124049, at *3
(Kan. App. 2021) (unpublished opinion) (applying Farr's constructive amendment rules
for indictments to an information).
As explained by another panel of this court:
"Differences in the charged conduct and the evidence proven at trial present
variances which may warrant reversal. A variance may occur in two different ways: (1)
where the charging terms do not change, but the evidence at trial proves facts materially
different from the facts alleged in the complaint; and (2) where the evidence presented at
trial, coupled with the jury instructions, so alters the complaint as to charge a different
crime. See United States v. Koerber, 10 F.4th 1083, 1115-16 (10th Cir. 2021), cert.
denied 143 S. Ct. 326 (2022). The first scenario presents a simple variance which triggers
harmless error review; the latter presents an impermissible constructive amendment
which is reversible per se." Dickerson, 2024 WL 62834, at *2 (citing United States v.
Sells, 477 F.3d 1226, 1237 [10th Cir. 2007]).
To determine whether a constructive amendment has occurred, we must examine
whether the crime for which the defendant was convicted at trial was charged in the
charging document. Farr, 536 F.3d at 1180; Hunt, 61 Kan. App. 2d at 438. To make this
determination, we compare the charging document "with the district court proceedings to
discern if those proceedings broadened the possible bases for conviction . . . ." Farr, 536
F.3d at 1180; Hunt, 61 Kan. App. 2d at 438. As noted above, an impermissible
constructive amendment is reversible per se. Sells, 477 F.3d at 1237; see State v. Vaughn,
No. 111,430, 2016 WL 367917, at *17 (Kan. App. 2016) (unpublished opinion).
6
Franklin's possession of marijuana charge was constructively amended.
Here, in the amended complaint, the State charged Franklin in Count 2 with
possession of marijuana under K.S.A. 2019 Supp. 21-5706(b)(3), with the crime severity
level determined under (c)(3)(B) (including a prior conviction which is irrelevant to our
analysis here):
"That on or about the 1st day of February, 2020, in Reno County, Kansas, Joseph M
Franklin, then and there being present did unlawfully and intentionally, knowingly or
recklessly possess marijuana, a Schedule I drug as listed in K.S.A. 65-4105(d) and
amendments thereto." (Emphasis added.)
But jury instruction No. 9, pertaining to Count 2, contained an element that was
different from the crime charged:
"In Count Two, Joseph Franklin is charged with unlawfully possessing
tetrahydrocannabinol. Joseph Franklin pleads not guilty. To establish this charge, each of
the following claims must be proved:
"1. Joseph Franklin possessed tetrahydrocannabinol.
....
"The State must prove that Joseph Franklin possessed tetrahydrocannabinol
knowingly. . . ." (Emphases added.)
The evidence produced at trial by the expert, Weeks, only demonstrated there was
THC in the pipe. No direct evidence was presented of the presence of marijuana,
specifically, although circumstantial evidence was presented of the presence of
marijuana, as discussed later.
7
The record clearly shows the discrepancy between the language of the complaint
and the jury instruction. So, the question we are left with is: did the jury instruction,
coupled with the direct evidence, so alter the complaint as to charge a different crime?
See United States v. Koerber, 10 F.4th 1083, 1115-16 (10th Cir. 2021), cert. denied 143
S. Ct. 326 (2022).
Franklin argues he was charged with possession of marijuana, but the district court
instructed the jury to find him guilty of the possession of THC. Because the two
substances are listed as separate controlled substances under K.S.A. 65-4105 and
separately criminalized under the statute, they are not interchangeable. Franklin maintains
the jury was ultimately instructed to find him guilty of a different crime than that which
he was charged, which impermissibly broadened the basis of his conviction.
The State insists that marijuana and THC are interrelated substances and
possession of either substance is functionally the same under Kansas criminal statutes
because they have identical punishments. Relying on Weeks' testimony that THC is an
ingredient in marijuana, the State claims THC is a derivative of marijuana, as defined
under K.S.A. 2019 Supp. 21-5701(j), and the nature of the substances makes marijuana
and THC synonymous with each other. The State asserts since Franklin was charged
under K.S.A. 2019 Supp. 21-5706, which criminalizes "unlawful possession of a
controlled substance," the jury instruction was not erroneous because Franklin clearly
was in possession of a controlled substance, whether it was marijuana or THC.
The State's argument is unconvincing on multiple grounds. First, the State's claim
that marijuana and THC are functionally the same contradicts clear legislative intent. The
most fundamental rule of statutory construction is that the intent of the Legislature
governs if that intent can be ascertained. State v. Keys, 315 Kan. 690, 698, 510 P.3d 706(2022). An appellate court must first attempt to ascertain legislative intent through the
statutory language enacted, giving common words their ordinary meanings. State v. Betts,
8
316 Kan. 191, 198, 514 P.3d 341 (2022). "When a statute is plain and unambiguous, an
appellate court should not speculate about the legislative intent behind that clear
language, and it should refrain from reading something into the statute that is not readily
found in its words." Keys, 315 Kan. at 698.
Our Legislature identified marijuana and THC as separate substances in Schedule I
of the Uniform Controlled Substances Act under K.S.A. 65-4105. Marijuana is identified
under K.S.A. 2019 Supp. 65-4105(d)(17), while THC is listed under a different
subsection, K.S.A. 2019 Supp. 65-4105(h)(1). Accordingly, in the Kansas Criminal Code,
the unlawful possession of marijuana and THC are also separately categorized under
K.S.A. 2019 Supp. 21-5706(b)(3) and (b)(7), respectively. And under K.S.A. 2019 Supp.
21-5706(c)(3)—the portion of the statute setting out the severity level of each crime—
marijuana and THC are clearly delineated as separate categories under subsection (b) of
the statute. ("If the substance involved is marijuana . . . or tetrahydrocannabinols . . . .").
We must construe statutes to avoid unreasonable or absurd results and we presume the
Legislature does not intend to enact meaningless legislation. State v. Smith, 311 Kan. 109,
114, 456 P.3d 1004 (2020). To interpret the two substances as interchangeable despite
them being distinguished in the statute would run afoul of Legislative intent.
The State tries to reinforce its argument by claiming that marijuana and THC are
synonymous because THC is a derivative of marijuana, relying on the statutory definition
of marijuana under K.S.A. 2019 Supp. 21-5701. In pertinent part, K.S.A. 2019 Supp. 21-
5701(j) defines marijuana as "all parts of all varieties of the plant Cannabis whether
growing or not, the seeds thereof, the resin extracted from any part of the plant and every
compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or
resin." Although this definition does wrap derivatives from the plant Cannabis into the
legal definition of marijuana, it does not specify that a chemical component or an active
ingredient, such as THC, can alone be legally considered marijuana. The State provides
no supporting authority to support its interpretation.
9
Second, to read K.S.A. 2019 Supp. 21-5701 in this manner creates a legal
loophole. So long as an individual is charged with possession of a controlled substance
under K.S.A. 2019 Supp. 21-5706(b)(3) or (b)(7), the State could later substitute the
substance it charged in the jury instruction to whichever substance is easier to prove at
trial. Such a "bait and switch" tactic is prohibited. Dickerson, 2024 WL 62834, at *2.
"To permit convictions premised on charges not contained in the State's charging
instrument offends the notions of fundamental fairness and due process. It 'is axiomatic in
our legal system that "a court cannot permit a defendant to be tried on charges that are not
made in the indictment against him."' United States v. Farr, 536 F.3d 1174, 1179 (10th
Cir. 2008) (quoting Stirone v. United States, 361 U.S. 212, 217, 80 S. Ct. 270, 4 L. Ed. 2d
252 [1960]). Because the language employed by the State in complaints 'becomes an
essential and delimiting part of the charge itself . . . "the jury instructions and evidence
introduced at trial must comport with"' the complaint. Farr, 536 F.3d at 1181 (quoting
United States v. Bishop, 469 F.3d 896, 902 [10th Cir. 2006])." Dickerson, 2024 WL
62834, at *2.
Finally, relying on this court's holding in State v. Evans, No. 116,149, 2018 WL
1545683 (Kan. App. 2018) (unpublished opinion), the State argues that transposition of
the substance from marijuana to THC was harmless because it did not affect the jury's
deliberation. But Evans is clearly distinguishable because there, the State charged the
defendant for possessing marijuana and/or THC. A panel of this court found that,
although the State's drafting of its complaint using "and/or" was "not good practice,"
there was ample evidence for the jury to find Evans in possession of marijuana or THC.
2018 WL 1545683, at *4. The same cannot be said here, because the jury instruction
required a finding of THC alone, while the charging document included only marijuana.
Unlike in Evans, the State here cannot show that interchanging the substance from
marijuana to THC would be harmless.
10
Having established the State cannot support its argument that there is no
substantial difference between possession of marijuana and THC, we must determine
whether the substitution of the controlled substance in the jury instruction constituted an
impermissible constructive amendment.
Several panels of this court have examined what constitutes an unconstitutional
constructive amendment. For instance, in State v. Montes, No. 104,563, 2012 WL
307532, at *5 (Kan. App. 2012) (unpublished opinion), Montes was convicted of
conspiracy to manufacture methamphetamine, but the complaint alleged that Montes
acted in furtherance of the conspiracy when he obtained ingredients or provided a
coconspirator with items to manufacture methamphetamine. But the jury instruction
provided the State had to prove Montes acted in furtherance of the conspiracy by
manufacturing methamphetamine. The Montes panel held the trial court's instruction
broadened the basis for Montes' conviction and that it amounted to an impermissible
constructive amendment. 2012 WL 307532, at *5.
Similarly, in Holmes, 2017 WL 5617102, at *2, Holmes was charged with
aggravated battery, inflicting great bodily harm, disfigurement, or death. But the district
court's instruction to the jury provided that the State needed to prove the defendant
caused physical contact in a "'rude, insulting or angry manner in any manner whereby
great bodily harm, disfigurement or death can be inflicted.'" 2017 WL 5617102, at *2.
The panel found that Holmes was convicted of a different crime than what was charged
because the jury instruction given by the district court broadened the charge against him.
2017 WL 5617102, at *5.
And in Dickerson, another panel arrived at a similar conclusion, finding the
district court instructed the jury on broader terms of interference with law enforcement
than the charge permitted, and the State argued to the jury that Dickerson interfered with
an official duty different from what was charged. Finding "to constitute a constructive
11
amendment that requires reversal, the incongruity must concern essential elements of the
charged conduct under the statutory offense," the Dickerson panel reversed the district
court due to an unconstitutional constructive amendment. 2024 WL 62834, at *5.
Other panels have found no constructive amendment when the variance in the
charging document and the jury instructions combined with the evidence during trial do
not alter the essential elements of the statutory offense. In Hunt, a panel determined when
jury instructions mirror the charging document, it does not broaden the basis for the
charge and does not amount to a constructive amendment. 61 Kan. App. 2d at 442.
Likewise, in Nesbitt, this court found when the information charged the defendant with
aggravated robbery based on the infliction of bodily harm to a named victim while the
instruction merely stated the jury had to find bodily harm was inflicted on any person, the
difference did not amount to an unconstitutional constructive amendment. Nesbitt, 2021
WL 3124049, at *4. The panel explained that "the essential elements of the crime involve
the statutory elements, not the specific actions or specific persons listed in the charging
document" and the instruction still contained the essential elements of aggravated robbery
as it was charged. 2021 WL 3124049, at *4.
Considering this court's prior rulings, we find a constructive amendment has
occurred here. Like in Dickerson, Holmes, and Montes, the State broadened the basis for
Franklin's conviction through a "bait and switch" tactic. Although the State initially
charged Franklin with possession of marijuana, the State later switched the essential
element of the crime it needed to prove to match the expert's testimony at trial.
Because the trial court's jury instruction coupled with the State's direct evidence
impermissibly supported a conviction based on a charge different from that contained in
the complaint, a constructive amendment occurred. Constructive amendments are
reversible per se, so the State's argument that any error was harmless because marijuana
12
and THC are interchangeable is unconvincing. On this basis, we must reverse Franklin's
conviction on Count 2, possession of marijuana.
EVIDENCE WAS SUFFICIENT TO CONVICT FRANKLIN OF POSSESSION
OF MARIJUANA—BUT THAT WAS NOT HOW THE JURY WAS INSTRUCTED
Because we reverse Franklin's conviction for possession of marijuana, we must
also examine his challenge to the sufficiency of the evidence for the same charge. See
State v. Jefferson, 297 Kan. 1151, 1166, 310 P.3d 331 (2013). If the evidence offered by
the State in the first trial was insufficient to support his conviction, a second trial on the
same charge would violate Franklin's right to be free from double jeopardy. 297 Kan. at1166 (citing State v. Hernandez, 294 Kan. 200, 209, 273 P.3d 774 [2012] [noting that
when reversal is appropriate on at least one ground, the court must address challenge to
sufficiency of evidence for double jeopardy purposes]).
Applicable Legal Standards
"'When the sufficiency of the evidence is challenged in a criminal case, we review
the evidence in a light most favorable to the State to determine whether a rational
factfinder could have found the defendant guilty beyond a reasonable doubt." State v.
Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). "This is a high burden, and only when
the testimony is so incredible that no reasonable fact-finder could find guilt beyond a
reasonable doubt should we reverse a guilty verdict." State v. Meggerson, 312 Kan. 238,
247, 474 P.3d 761 (2020).
The State presented sufficient evidence to support a conviction for possession of
marijuana.
Franklin argues the State, at best, presented evidence to prove that the pipe found
in his backpack contained THC. We do not entirely agree.
13
The State has the ultimate duty to present evidence proving each element of the
crime beyond a reasonable doubt. State v. Buchanan, 317 Kan. 443, 454, 531 P.3d 1198(2023). As noted above, Franklin was convicted of possession of marijuana under K.S.A.
2019 Supp. 21-5706(b)(3), which prohibits, in pertinent part, the possession of "any
hallucinogenic drug designated in K.S.A. 65-4105(d), 65-4107(g) or 65-4109(g), and
amendments thereto." Marijuana is listed as a Schedule I drug, K.S.A. 65-4105(d)(17),
and the drugs contained in Schedule II (65-4107[g]) and Schedule III (65-4109[g]) are
inapplicable here. The State was required to prove that Franklin possessed a substance
meeting the legal definition of marijuana, and as discussed above, marijuana and THC
are clearly distinguished in the Uniform Controlled Substances Act, under K.S.A. 2019
Supp. 65-4105(d)(17) and K.S.A. 2019 Supp. 65-4105(h)(1), respectively; and
criminalized separately under K.S.A. 2019 Supp. 21-5706(b)(3) and (b)(7), respectively.
In support of the conviction, the State relies on this court's unpublished opinion in
State v. Baldwin, No. 124,442, 2023 WL 5163292 (Kan. App. 2023) (unpublished
opinion). In Baldwin, the defendant was charged and convicted of possession of
marijuana and drug paraphernalia. 2023 WL 5163292, at *3. Baldwin argued the State
failed to establish whether the substance alleged to be in his possession was indeed
marijuana and that it did not fall under any exempt substances under K.S.A. 21-5107.
2023 WL 5163292, at *3. This court found that
"while THC is one indicator that a substance is marijuana, it is not the only indicator.
Circumstantial, as well as direct, evidence can assist a jury in determining whether the
substance at issue is marijuana. In fact, a conviction can be based entirely on
circumstantial evidence so long as the evidence supporting the verdict permits the fact-
finder to draw reasonable inferences regarding the facts at issue. Circumstantial evidence
need not exclude every other reasonable conclusion to be sufficient to support a
conviction. State v. Banks, 306 Kan. 854, 858-59, 397 P.3d 1195 (2017)." 2023 WL
5163292, at *4.
14
The Baldwin panel determined the law enforcement officer's testimony,
defendant's testimony during trial, and the State's expert testimony, although all
circumstantial, was enough evidence to support a finding that the substance found in
Baldwin's possession was marijuana. 2023 WL 5163292, at *5-6.
Here, the circumstantial evidence paints a similar narrative. The State presented
evidence to show Franklin physically possessed marijuana through Officer Harris'
interactions with him during the arrest. Officer Harris testified that he smelled burnt
marijuana on the pipe based on his professional experience. Officer Harris also confirmed
with Franklin that he last smoked marijuana two days prior to the incident and that the
one-hitter pipe could be his. Weeks' testimony that THC is an active ingredient in
marijuana, in combination with the other circumstantial evidence, could support the jury's
belief that Franklin possessed marijuana.
This court does not reweigh evidence, resolve conflicts in the evidence, or pass on
the credibility of witnesses. Aguirre, 313 Kan. at 209. And viewed in a light most
favorable to the State, a reasonable fact-finder could conclude there was enough evidence
to find that the substance in the pipe found in Franklin's bag was marijuana. Accordingly,
if this were the sole question in this appeal, we would be compelled to find there was
sufficient evidence to support Franklin's conviction and affirm the same.
But here we are faced with a situation where the jury was simply not instructed to
consider whether Franklin was guilty of possessing marijuana. Instead, the jury was
solely instructed that the State was required to prove that Franklin possessed THC, not
marijuana, to find Franklin guilty of Count 2. Although there was enough evidence to
find Franklin was in possession of marijuana, circumstantial as it may be, the jury could
not have reached a determination of possession of marijuana because it was not instructed
to do so. The jury was deprived of the option to consider that element.
15
Double jeopardy may be implicated when we reverse and remand a case for a
second trial on the same charges under specific circumstances. If the evidence presented
during the first trial was insufficient to support his conviction for possession of
marijuana, a second trial on the same charge would violate Franklin's rights. See
Jefferson, 297 Kan. at 1166. However, double jeopardy does not act as a bar to a retrial
where the defendant appeals and obtains a reversal of the conviction based upon an error
in the proceeding. See Hernandez, 294 Kan. at 209 (citing Ball v. United States, 163 U.S.
662, 671-72, 16 S. Ct. 1192, 41 L. Ed. 300 [1896]). Because we find the evidence would
have been sufficient, but the instruction error requires per se reversal, remand for a new
trial does not implicate double jeopardy, and we hold fast to our reversal of the
conviction for possession of marijuana and remand for a new trial.
FRANKLIN'S EQUAL PROTECTION ARGUMENT IS MOOT
Franklin's final contention on appeal is that the district court violated his rights
under the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution by erroneously scoring his criminal history as A. We need not reach this
argument for two reasons. First, we reverse his conviction for possession of marijuana
and the district court must proceed accordingly.
More importantly, this issue has already been decided in another appeal by
Franklin. In case No. 125,323, after Franklin's appeal of his sentence and motion for
summary disposition, this court vacated Franklin's sentence and remanded for
resentencing using the correct criminal history score. State v. Franklin, No. 125,323
(order filed August 24, 2023).
Franklin fails to address this court's finding in case No. 125,323 or provide any
reason why this court should readdress the issue. The burden is on Franklin to designate a
record sufficient to present his points and establish his claims, but he does not do so.
16
Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d 287 (2013);
see Supreme Court Rule 6.02(a)(4) (2024 Kan. S. Ct. R. at 36). We dismiss Franklin's
Equal Protection argument as moot.
Reversed in part, dismissed in part, and remanded with directions.
17